President Obama, the Right Not to Do Wrong, and the Politics of Ruse and Delay

No one can be rightly coerced by the state to be directly complicit in the commission of a wrong. This goes for any businessman, employer, insurance company, or individual, regardless of faith.

After three weeks of outcry from religious leaders regarding its Health and Human Services contraception insurance mandate, the Obama administration announced a “compromise” on February 10. But the White House’s idea of “compromise” is nothing more than a classic shell game, leaving the same problems in place that have been the source of controversy since this federal rule was first proposed last August. Some people claiming to represent a Catholic perspective have offered their support to the administration, but the nation’s Catholic bishops have declared this “bargain” unacceptable. Already, scores of college presidents, scholars of religious liberty, and other religious and educational leaders—Catholic, Protestant, and Jewish—have joined the bishops in rejecting the administration’s fraudulent “accommodation.”

Going forward, all Americans who support our founding principle of religious liberty should not only reject the White House’s offer outright. They should raise the stakes in this debate, and continue to press for the rights of all their fellow citizens who have religious scruples about abortion, and even those who have moral scruples but are not self-consciously “religious” about it.

Here is what the Obama administration has been proposing to do since the late summer of 2011: Under the terms of the Patient Protection and Affordable Care Act, all employers but the smallest ones will be required to offer group health insurance to their employees, or pay a hefty annual fine multiplied by the number not covered. The law provides that “preventive services” must be covered by that insurance without a deductible or co-payment from the employee—such services are “free,” which is to say paid for in full by the employer’s premiums. Acting on highly politicized advice from the Institute of Medicine, Health and Human Services Secretary Kathleen Sebelius published a proposed rule in August that would include, in the category of “preventive services,” all FDA-approved prescription contraceptives, including “morning after” drugs with known abortifacient effect such as Ella and Plan B, as well as sterilization procedures. Thus, all employers, unless exempted by the Secretary, would be forced to subsidize—thus to be complicit in and to act directly in aid of—the acquisition of pharmaceutical abortions by their employees, as well as other contraceptives and sterilization procedures.

As proposed last August by Secretary Sebelius, the original HHS rule will exempt only those employers who fit very tightly defined criteria as “religious employers”—devoted to inculcation of the faith, serving and employing primarily co-religionists, and so on. As everyone knows by now, this leaves countless authentically religious institutions subject to the rule, and forced either to violate their consciences, or to drop health coverage for their employees and pay stiff penalties. Religious charitable organizations, schools and universities, and hospitals and clinics would not fit inside the bounds of the exemption.

This much was well-known by the time the secretary announced on January 20 that the final rule would be promulgated without any change. Through the autumn and into the winter, strong objections to the rule had been voiced by Catholic bishops and leaders of universities and other religious institutions, but the pitch of urgency had perhaps not been high enough to warn the Obama administration of the reaction to come—and that may be because no one really expected it to go through with the rule as originally written. When Secretary Sebelius did exactly that, the outcry was swift, loud, and persistent. It cut across ideological lines, with liberal journalists and even some Democratic members of Congress turning against the administration on this issue. And it cut across religious groups, with Jews and Protestants joining Catholics in decrying this intrusion on religious freedom.

The president and the secretary seemed to realize that some appearance of being accommodating was necessary, and so on February 10 they produced just that—a mere appearance of “compromise.” First, the controversial rule was published that day in the Federal Register, without any change. Then, in a “fact sheet” distributed by the White House, the administration promised to work “in the transition year” from August 2012 to August 2013 on a “new regulation” covering “religious organizations” not fitting in the current exemption. The transparent objective of this promise is to get past the 2012 presidential election without arguing about this controversy any further.

In an obvious accounting gimmick, the administration now claims that “religious organizations will not be required to subsidize the cost of contraception,” yet it will require the insurance companies that provide their coverage to offer the very services to which the organizations object—and to contact all the organizations’ female employees directly to offer them—free of charge. Now, who can be taken in by this ruse? Of course, the costs borne by the insurance companies will be passed on to the organizations purchasing the group health coverage. Insurers will make their best estimates of women seeking such services when pricing their policies up front, and set the premiums accordingly, adjusting periodically thereafter to reflect their actual costs over time. Does anyone think they will somehow shift the costs entirely to their “non-religious” customers, charging only them for the contraceptive services used by the employees of religious organizations? How long would they keep those other customers if they clearly did so? Notice as well that self-insuring religious organizations gain no relief from this Obama administration “compromise.”

But this brings us to a larger problem that has mostly been lost amid the furor of recent weeks. We can see it by peeling back the layers of this controversy. First, religious institutions and employers (church-owned or –affiliated schools, hospitals, etc.) are not the only institutions and employers with valid claims of religious liberty. Countless privately held companies are owned by individuals and families who, for religious reasons, have objections to an insurance mandate that requires the provision of pharmaceutical abortions. Even publicly traded companies may have boards, and blocs of shareholders, with identical objections. And the Obama administration assumes that no insurance company that offers health coverage can have a valid claim that its shareholders’ and mutual policyholders’ religious freedom is infringed by this regulation. Insurance companies are now public utilities, with no religious liberty the government is bound to respect.

Second, institutions are not the only possessors of a relevant religious freedom here. Ultimately, it is individuals who are always the last link in the chain when costs are passed along. Are individual purchasers of insurance—e.g., the self-employed—going to be able to find insurers to do business with that don’t cover this for others? Not in a country governed by the Obama-Sebelius rule. Are ordinary citizens, in various fields of employment, going to be caught up in sharing—in direct outlays, pass-through pricing, or lost income—the mandatory costs of abortifacient drugs provided free of charge on the demand of women covered by their employer or insurance company, or even just by the companies they deal with as consumers of goods and services? Of course they are, because someone is going to have to pay for this. In the America redesigned by Obama and Sebelius, we are all to be complicit in the destruction of innocent human life. Our religious freedom means nothing to this administration.

Third, even non-religious American individuals and institutions are obliged by this administration to be complicit in a wrong. Some of them will not think so—having no objection themselves to abortion, let alone contraception and sterilization. But some of them will think so, especially as regards abortion. They will not have religious reasons for thinking so, and thus will not be able to complain of their religious freedom being invaded. They probably cannot join therefore in litigation on this matter. But their right not to do a wrong is implicated, and should be redressed politically, by Congress and by the voters.

Religious Americans should bear in mind that what we call “sin” is a specially freighted word for “wrongdoing,” a notion equally accessible to agnostic and atheistic citizens. Catholics in particular are fond of pointing out that their opposition to abortion is fully intelligible on “natural law” grounds. Yes, that sounds highfalutin and philosophical. But all this really means, for our present purposes, is that ordinary human powers of moral reasoning are sufficient to arrive at the conclusion that abortion is gravely wrong. No recourse to revelation, scripture, or the doctrines of any faith is necessary to reach that conclusion. As the American founders put it, it is a “self-evident” truth that human beings possess an “unalienable right” to life itself. A truth of this character is knowable by the unaided human mind. Catholics and other Christians—as well as many Jews and Muslims—will add that such a moral norm is powerfully reinforced by the teachings of their faiths. The grave wrong of abortion is, for them, also a grave sin against the Creator of all life.

As I say, non-religious Americans will not be able to claim the protection of our constitutional principles of religious liberty in this matter. But they, no less than their religious fellow citizens, have consciences at stake—which are under assault by the Obama administration, if they happen to have moral scruples about abortion. For no one can be rightly coerced by the state to be directly complicit himself in the commission of a wrong. This goes for any businessman, employer, insurance company, or individual implicated in this complex web of coercion.

This is not, by the way, anything like the argument sometimes heard that “I should be able to withhold the share of my tax dollars that goes to” some purpose the speaker strongly disapproves on some moral ground. Our representative government collects taxes, and spends the public fisc, on those purposes that are deemed, by the processes of majoritarian democracy and the rule of law, to be part of the common good. When Caesar spends his coin, even though much of it is raised by taxing the faithful, the taxpayers are not individually ensnared in the commission of any wrongful acts from which they may claim a right to disengage themselves. Their responsibility as citizens, in such a case, is to try to turn Caesar toward doing right instead of wrong. This is the principle involved in consistent federal refusals to fund abortion directly (the Hyde Amendment) or to fund the destruction of embryos for research (the Dickey-Wicker Amendment).

But in the present circumstances we have something different—not taxing and spending on an evil, but bureaucratically coerced personal and institutional involvement in the commission of an evil. This is an affront to every American, religious or non-religious, pro-life or pro-choice.

Peeling back the layers of the problem at hand, we can now see its core. The Catholic bishops, and other religious leaders, ought to be fighting, as they have been, for the religious institutions for which they have a special responsibility as shepherds of their flocks. They ought also to be fighting for every business owner, corporate board, health insurer, and mutual policyholder who is religiously scrupulous about contraception, sterilization—and especially abortion. They ought to be fighting for every employee, insurance purchaser, and consumer who is religiously scrupulous about these things. These are their lambs as well. And they ought to be fighting the imposition of an abortifacient-insurance mandate on anyone—any institution or individual, religious or non-religious—because abortion is wrong, and no one should be coerced to involve himself in wrongful acts.

A handful of commentators on this controversy—sadly, too few—have observed that the only workable “religious exemption” is one that exempts anyone and everyone who has a religious objection to becoming involved in the provision of contraception, sterilization, or abortion. But we can go farther still. The only real solution here is a true “conscience exemption” for everyone, period, with or without a religious reason to object to this imposition on them. And that means that the solution is political—the repeal of the power granted to federal bureaucrats to coerce everyone caught in the web of health insurance to become complicit in acts they may consider morally objectionable. For the government has no right to force any of us to do a wrong.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.